Among the key principles for the awarding of contracts for amounts below the European thresholds (sub-thresholds), rotation is certainly one of the most important because it is inspired by respect for competition and favor participationis between small and medium-sized enterprises.
The rotation principle in the new Contract Code
Unlike the previous legislation, the rotation principle finds its specific place within the new Legislative Decree 31 March 2023, n. 36 (Code of Contracts or Procurement Code) and more precisely in art. 49 (Book II of the Contract, Part I of contracts of amounts lower than the European thresholds) which applies to all contracts of amounts lower than the community thresholds indicated in the art. 14 of the Code itself.
Please note that after the approval of Delegated Regulation (EU) 2023/2495, from 1 January 2024 throughout 2024 and 2025, the thresholds of European relevance are:
- 5,538,000 euros for public works contracts and concessions;
- 143,000 euros for public supply and service contracts and for public design competitions awarded by contracting authorities which are central government authorities indicated in Annex I to Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 ; if public supply contracts are awarded by contracting authorities operating in the defense sector, this threshold applies only to contracts relating to products mentioned in Annex III to Directive 2014/24/EU;
- 221,000 euros for public supply and service contracts and for public design competitions awarded by sub-central contracting authorities; this threshold also applies to public supply contracts awarded by central government authorities operating in the defense sector, when the contracts concern products not mentioned in Annex III to Directive 2014/24/EU;
- 750,000 euros for contracts for social and similar services listed in Annex XIV to Directive 2014/24/EU.
In special sectors the thresholds of European relevance are:
- 5,538,000 euros for works contracts;
- 443,000 euros for supply and service contracts and for public design competitions;
- 1,000,000 euros for service contracts, for social and similar services listed in Annex XIV to Directive 2014/24/EU.
Rotation principle: new intervention by the ANAC
Both the Ministry of Infrastructure and Transport (MIT) and the National Anti-Corruption Authority (ANAC) have already expressed their opinions several times over the course of the last year on the principle of rotation.
A new intervention comes from the ANAC with the President’s act of 24 May 2024, n. 740 which enters into the merits of the rotation principle in relation, however, to the direct assignments referred to in the art. 36 of the old Contract Code or Legislative Decree no. 50/2016.
The case in question, in fact, concerns the failure to apply the principles indicated in the art. 30 of the old code and governed by the ANAC Guidelines n. 4 therefore in carrying out the simplified procedures referred to in art. 36, the contracting authorities guarantee compliance with the principle of rotation of invitations and assignments. In particular, as provided for by the aforementioned guidelines, the principle of rotation of assignments and invitations applies, with reference to the assignment immediately preceding the one in question, in cases where the two assignments, the previous one and the current one, have as their object a job order falling within the same product sector, or in the same category of works, or even in the same service sector.
In the case reported to ANAC, there would be an evasion of the rotation principle, given that the company to which the contract was entrusted had been awarded the immediately previous direct assignment of the same category of works, without said new direct assignment being in any way motivated by the fact that the market presented a reduced number of potential competitors or in consideration of the level of quality of the previous contractual relationship.
Respect for rotation
ANAC reiterated that the rotation criterion takes on general value, in order to guarantee the effective possibility of participation in micro, small and medium-sized enterprises and avoid the stabilization of position incomes for some operators, who could derive advantages from the information acquired during the previous assignment, especially in markets where the number of agents is not high.
The contracting authority is therefore required to respect the principle of rotation of invitations, in order to favor the temporal distribution of awarding opportunities among all potentially suitable operators and to avoid the consolidation of exclusive relationships with some companies. The prohibition on re-assignment does not, however, have absolute value, as according to ANAC a derogation by the contracting authority that reinvites or re-assigns the outgoing contractor is admissible, provided that it precisely motivates the choice where the market presents a reduced number of potential competitors or in consideration of the quality level of the previous contractual relationship.
In the present case, it does not appear that for said recurring assignments, the Municipality has specifically justified the choice of re-assignment or re-invitation.
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